National Small Industries Corp. ... vs Sh. Balwinder Singh
2009 Latest Caselaw 2474 Del

*      HIGH COURT OF DELHI : NEW DELHI

                   RFA No.486 of 2001

%            Judgment reserved on: 22nd May, 2009

             Judgment delivered on: 3rd July, 2009


National Small Industries Corp. Ltd.
(A Government of India Enterprise)
Having its Registered office at:
„NSIC Bhawan‟
Okhla Industrial Estate,
New Delhi-110 020                          ....Appellant

                       Through: Mr. Sanat Kumar, Adv.

                  Versus

Sh. Balwinder Singh
S/o. Sh. Puran Singh,
Sole Proprietor of M/s. Dashmesh Oil Mills,
Village & P.O. Wadala Viram,
District Amritsar,
Punjab.                              ...Respondent.

                       Through: None.

Coram:
HON'BLE MR. JUSTICE V.B. GUPTA

1. Whether the Reporters of local papers may
   be allowed to see the judgment?                    Yes

2. To be referred to Reporter or not?                 Yes

3. Whether the judgment should be reported
   in the Digest?                                     Yes



RFA No.486/2001                                  Page 1 of 8
 V.B.Gupta, J.

This appeal has been filed against the judgment and

decree dated 17th March, 2001 passed by Additional

District Judge, Delhi, vide which the suit of the appellant

for recovery and possession of the machines, was partly

decreed.

2. Brief facts are that, appellant supplied certain

machines to defendant on Hire Purchase basis.

Respondent agreed to pay the total Hire Purchase value of

machines fixed under the agreement at Rs. 1,73,477/-.

Respondent deposited a sum of Rs.13,500/- as earnest

money and agreed to pay the balance amount of

Rs.1,59,977/- by way of thirteen half-yearly installments.

However, respondent did not keep his commitment. When

appellant deputed a team to visit the premises of the

respondent, it was found that respondent had disposed of

machines in breach of Hire Purchase agreement. Appellant

lodged an F.I.R. against respondent. However, respondent

acknowledged his liability from time to time and the last

acknowledgment was made by him on 25 th June, 1995. As

per the books of accounts maintained by the appellant, a

sum of Rs.2,33,988/- became due and payable as on 28th

February, 1997. In addition, the appellant is also entitled

to interest @ 17% p.a. w.e.f. 28th February, 1997. The

appellant is also entitled to the custody and possession of

the machines which are the subject matter of the

agreement. It was also prayed that respondent be directed

to restore the machines or in the alternative pay a sum of

Rs.43,370/ being the residual values of said machines.

3. Respondent was duly served by publication but did

not appear and as such vide order dated 27th September,

1999 passed by the trial court, he was proceeded ex-parte.

4. Vide impugned judgment, suit of the appellant was

partly decreed for a sum of Rs.58,000/- with proportionate

costs and respondent was also held liable to pay interest on

this amount @ 17% per annum w.e.f 25th June, 1995 till

date.

5. It is contended by learned counsel for the appellant

that the hire purchase period was to be over on 1st July,

1995, when the last installment of hire money was payable

by the respondent. During the continuation of the hire

purchase period, respondent vide his letter dated 5th

March, 1994 (Exb-PW 1/15) acknowledged and accepted

his liability towards the appellant and assured to pay a sum

of Rs.85,000/- in three installments, within the period of six

months. Thereafter, respondent vide letter dated 22nd

February, 1995 (Exb.- PW 1/16) again acknowledged and

accepted his liability. Thereafter, respondent once again

vide his letter dated 25th June, 1995 (Exb.-PW 1/17)

promised to pay a sum of Rs.58,000/- within a period of two

months.

6. It is contended that all these letters were written by

the respondent during the continuation of hire purchase

period, as the hire purchase period was to be over on 1st

July, 1995. The appellant filed the suit on 5 th June, 1998

and thus the suit of the appellant could not have been held

to be barred by limitation and the entire suit ought to have

been decreed.

7. It is also contended that in terms of the hire purchase

agreement (Exb-PW 1/2), the appellant is entitled to the

custody and possession of the machines which are the

subject matter of the above said agreement. The machines

in question are the property of appellant and respondent

cannot get any right on the same until and unless he has

paid all the installments due under the agreement.

8. Taking the appellant‟s case as it is, admittedly,

appellant filed suit for recovery of Rs. 2,33,988/- and for

possession of machines on 5th June, 1998. According to the

Limitation Act 1963, period of limitation for filing suit for

recovery is three years. Thus, appellant should have filed

the suit within a period of three years from the date money

was lend to respondent.

9. According to appellant, the hire purchase period was

to over on 1st July, 1995 when the last installment of hire

money was payable by the respondent. In the hire

purchase agreement Exb-PW 1/2, nowhere date of 1st July,

1995 as payment for the last installment, has been

mentioned.

10. Hire Purchase agreement Exb-PW 1/2 was executed

on 6th October, 1987 and as per clause 2(x) of this

agreement, the hirer is supposed to pay all sorts of dues in

full recoverable from him within 7½ years. As per this

agreement, period of 7½ years is to be over by 6th April,

1995. Taking this date of 6th April, 1995, as date of

payment of last installment, even then the suit of appellant

is barred by limitation.

11. Now, coming to the acknowledgment made by the

respondent. The first acknowledgment is purported to

have been made by letter dated 5th March, 1994 (Exb-PW

1/15). According to this acknowledgment, the suit could

have been filed by 5th March, 1997. Similarly, second

acknowledgment (Exb-PW 1/16) dated 22nd February, 1995

purported to have been made by the respondent.

According to this acknowledgment, suit could have been

filed by 22nd February, 1998. As far as third

acknowledgment (Exb-PW 1/17) is concerned, which is

dated 25th June, 1995, the suit on the basis of this

acknowledgment ought to have been filed within the

prescribed period of limitation, i.e. within three years,

which has been done in this case, as the suit for recovery

was filed on 5th June, 1998.

12. This acknowledgment dated 25th June, 1995 is in

Gurmukhi script and its English translation reads as under;

"It is submitted that I have to pay the outstanding amount of Rs.58,000/- to you. My business has failed and closed as a result of

which I am living in difficulty. I am trying to dispose of my property. I am trying to arrange money at the earliest. I will pay the outstanding amount within two months. I will make payment in September, 1995. Kindly grant me two months‟ time so that I may pay the outstanding balance of Rs.58,000/-. It shall be very kind of you."

13. Letter (Exb-PW 1/17) dated 25th June, 1995 contains

an express promise made by the respondent to pay a sum

of Rs. 58,000/- being the outstanding balance. This

promise is in writing and has been signed by respondent.

The present suit has been filed on 5th June, 1998 i.e. within

three years from the date of promise. Thus, the suit for

recovery of Rs.58,000/-, which has been filed within three

years from the date of acknowledgment made by

respondent is within period of limitation and respondent is

liable to pay only Rs.58,000/- on the basis of his

acknowledgment (Exb-PW 1/17) dated 25th June, 1995.

14. Accordingly, there is no ambiguity or infirmity in the

impugned judgment. The appellant is entitled only to

Rs.58,000/- along with proportionate costs with interest @

17% p.a. as awarded by the trial court.

15. As far as plea regarding the possession of machines in

question are concerned, since the machines were delivered

by the appellant to the respondent on 21st December, 1987

and the present suit was filed only on 5th June, 1998, so,

the suit for recovery of possession of machines, is

hopelessly time barred.

16. The present appeal is, thus, not maintainable and

same is hereby dismissed.

17. Trial court record be sent back.

July 03, 2009                          V.B.GUPTA, J.
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